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## L~TNBRNEY GICNETERAL OFTEXAS

Honorable Homer A. Davis Opinion No. M-1184 CountyAttorney P. 0. Box 1110 Re: Whether onewho was convicted 316Denrock Avenue of a felony, given a suspended Dalhart, Texas 79022 sentence, and had the cause against him later dismissed is eligible tobe certified as apolitical party nominee ina general election, pursuant toArticle 700of the 1925 Texas Code of Criminal ProceDearMr. Davis: dure.

your letter requesting theopinion of this office concerning the referenced matter states, inpart, as follows:

"Wehave a candidate for County Commissioner, aMr. Malcolm Bryant, who has previously been convicted of a felony.
"Ihave enclosed herewith, foryour consideration, the Judgment Plea of Guilty Before Court, dated June 9, 1961; Sentence Suspended, dated June 9, 1961; Recognizance on Suspension of Sentence; Motion forNew Trial and Dismissal of the Cause, dated April 14, 1964; together with theOrder Granting New Trial and Dismissing Cause, dated April 14, 1964, and ask that you please return them tome. "TheElection Code provides that, at the General Election, the Judge of the County Court shall certify those elected officers that are eligible to serve. My question is, assuming thatNr. Malcolm.Bryant should be elected County Commissioner, would he be qualified to serve? . . . ." Section 1of Article VI of the Constitution of Texas reads as follows:

"The following classes of persons shall not be allowed tovote in this State, towit:
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"First: Persons under twenty-one (21)years of age. "Second: Idiots and lunatics. "Third: All paupers supported by any county. "Fourth: All persons convicted of any felony, subject to such exceptions as the Legislature maymake." (Hmphasis added.) Section 2ofArticle XVI of the Constitution of Texas reads, inpertinent part, as follows:

"Laws shall bemade to exclude fromoffice, serving on juries, and from the right of suffrage, thosewhomay have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes. . . ." Article 1.05, Texas Election Code, provides that:
"Noperson shall be eligible tobe a candidate for, or tobe elected or appointed to, any public office in this state unless he is a citizen of the United States eligible tohold such office under the Constitution and laws of this state and is under none of the disabilities forvoting which are stated inArticle VI, Section 1of the Constitutioq of Texas

II

. . . . Article 5.01, Texas Election Code, provides that: "The following classes of persons shall not be allowed tovote in this state: II
. . . . "4. All persons convicted of any felony except those restored to full citizenship and right of suffrage or pardoned." The materials submitted with your letter conclusively show that the individual involved inyour request was convicted of the offense of assault with intent to rape, a felony. The materials also show that hewas given a twoyear suspended sentence, as allowed byArticle 780of the 1925 Code of Criminal Procedure. After fully serving his sentence, this individual thenmoved for a new trial and obtained an order dismissing the charge against him, as also provided for inArticle 780.
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Former Article 780 (nowcodified as Section 7ofArticle 42.12of the 1965 Texas Code of Criminal Procedure) provided as follows:
"Inany case of suspended sentence, at any time after the expiration of the time assessed as punishment by the jury, the defendant may make hiswritten swornmotion for a new trial and dismissal of such case, stating therein that since such former trial and conviction he has not been convicted of any felony, which motion shall be heard by the court during the first term time after same is filed. If it appears to the court, upon such hearing, that thedefendant has not been convicted of any other felony, the court shall enter an order reciting the fact, and shall grant the defendant a new trial and shall then dismiss said cause. After the setting aside and dismissal of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or insuired into for any purpose except rn cases where the defendant hasbeen aaain indicted for a felony and invokes thebenefit-of this law." (Emphasisadded.)
It is apposite to note that Section 7ofArticle 42.12, Texas Code of Criminal Procedure, the successor toArticle 780, provides that a defendant "shall thereafter be released fromall penalties and disabilities resulting from theoffense orcrime ofwhich he has been convicted or towhich hehas pleaded guilty."

We now turn to the question ofwhether the underscored portion ofArticle 780, supra, constitutes an exception to the prohibition of Section 1of Article VI of the Constitution of Texas.
It is axiomatic that constitutional and statutorv provisions which restrict the right tohold public office should be strictly construed against ineligibility. Hallv. Baum, 452 S.W.2d 699, 702 (Tex.Sup. 1970); Willis v. Potts, 377 S.W.2d 622, 623 (Tex.Sup. 1964).

Attorney General's Opinion No. O-2698 (1940)held that aperson who had been convicted of burglary, and was given a twoyear suspended sentence, could not hold the office of justice of thepeace. However, at the time the individual in that Opinion sought elective office, his suspended sentence was still in force and effect; such is not the casewith the individual involved in

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the instant request. See, also, Attorney General's Opinion No. 0-4121 (1941).

Attorney General's Opinion No.V-278 (1947)held that an individual was ineligible to serve as a school district trustee after he had been convicted of a felony and served his sentence, but had not had the disabilities attendant tohis conviction removed. Attorney General's Opinion No.M-640 (1970)construed Section 7ofArticle 42.12 and held thatwhen a court dismissed the charge against aperson who had successfully completed his probated sentence such person was thereby released fromall civil penalties and disabilities incurred by his conviction. Said Opinion also specifically held that such a person might serve on a jury and vote, butmade nomention of thequestion of holding office. Attorney General's Opinion No. M-795 (1971)'held that once the indictment against a defendant was dismissed, pursuant 1 to Section 7of Article 42.12, avoter registration certificate could be issued tohim.

Inview of the foregoing, we hold that theLegislature, in enacting Article 780of the 1925 Code of Criminal Procedure, and Section 7ofArticle 42.12 of the 1965 Code of Criminal Procedure, established a constitutionally sanctioned exception to theproscription of a convicted felon's holding office asprovided for in Section 1ofArticle VI of the Constitution of Texas.

The facts related inyour letter clearly show that the felony charge against the individual inquestion hasbeen.dropped, pursuant toArticle 780, and thathis suspended sentence isno longer in force.

You are therefore advised that the county judgemay legally certify Mr. Malcolm Bryant as a candidate for county commissioner in the general election tobe held on November 7, 1972.
SUMMARY

Article 780of the 1925 Code of Criminal Procedure and Section 7of Article 42.12 of the 1965 Texas Code of Criminal Procedure established a procedurewhereby the disabilities attendant toa felony

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conviction may later be removed. Pursuant to said statutes, one convicted of a felonymay later have his rights of citizenship restored. Once these rights are restored, the person is eligible tohold office. truly yours,

C. MARTIN
Prepared byAustin C. Bray, Jr. Assistant Attorney General
APPROVED: OPINION COMMITTEE

.' Kerns Taylor, Chairman W. E.Allen, Co-Chairman Roger Tyler Jay Floyd Gordon Cass John Banks
SAMUEL D.MCDANIEL Staff Legal Assistant / ALFRED WALKER Executive Assistant
NOLAWHITE First Assistant

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